Welles, J.
At the close of the evidence, the court was requested to charge the jury, 1. That if the note of Sanford, which fell due 3d January, 1848, was, at the time it was discounted, worth more to the plaintiffs by means of its being made payable at Troy, than a note payable at Palmyra, where Sanford and the plaintiffs resided, and carried on business, on account of funds at Troy being worth more than funds at Palmyra, and if it was not made payable at Troy at the bona fide request, or for the accommodation of Sanford, it was usurious and void. 2. That if said note was, at the time it was discounted, worth more to the plaintiff, by reason of its being payable at Troy than if made payable at Palmyra, and the plaintiff made it a condition of the discount that they should have a note payable at Troy, the note was usurious and void. The court declined to charge in the terms proposed, but charged instead thereof as follows, viz.: “ While I do not entirely dissent from the position assumed in these two points, I cannot, nevertheless, concur in them to their full extent. Whether a note made payable at a distant place, where funds are more valuable than at that where it is discounted •is usurious or not, depends upon the circumstances attending the transaction. A purchaser of produce having funds in the hands of his factors, at an eastern market, may draw a draft upon those funds, or make a note payable at the place where the funds are, relying upon the funds to meet it, and neither will be [341]*341usurious. In such a case it can make no difference whether the borrower or the lender selects the place of payment, or whether it is or is not made a condition of the loan that the note shall be made payable at the place where the funds are. It is a legitimate business transaction, and it is of no consequence which party is most benefited by it. The points under consideration, in assuming that if the place of payment of the note in question was not chosen by the maker for his own accommodation, or if it was made a condition of its discount that it should be made payable in Troy, funds there being more valuable than at Palmyra, then it would be usurious, irrespective of all other considerations, go farther than I think the law will warrant. If the place of payment grows naturally out of the course of business of the maker of the note, and is selected with a view to funds of his which are there, then it is no usury. So if the maker of the note have no funds at the point where the note is made payable, at the time it is discounted, but have produce there or on the way, which is to be sold, and the note is made relying upon the avails of such sale to meet it, the transaction is not usurious. If, on the other hand, the maker of the note has no funds at the place where the note is made payable, nor any reasonable expectation. that he will have funds there, growing out of his legitimate business, to meet the note, but it is expected, by both parties, that the borrower will have to place the funds there for the especial purpose of payment, the note is usurious, whichever party may have proposed the arrangement. When a note is made payable at a distance, to meet funds there or expected to be there, the benefit to the lender, if any, is a mere incident to the course of business. All that the maker contracts for, in such a case, is to apply the funds to the payment of the note. But when he promises to pay at a point where he neither has, nor expects to have funds, he agrees virtually to do more, to wit, to transport the funds to the place of payment, for the benefit of the lender. This addition to the mere agreement to pay makes the note usurious and void.”
The court, at the request of the defendants, counsel, charged the jury that if the first note of Sanford, which fell due January [342]*3423d, 1848, was usurious, and if the note in suit was made and discounted to pay the former note, the plaintiffs being acquainted with the object, and still remaining the owners of the first note, the note in suit was usurious and void.
The defendants’ counsel then made a like request in regard to the note in suit, precisely as he had previously in the two first points requested in respect to the first note, which request the court refused, and charged instead thereof, as he had done upon the previous request.
The counsel for the defendants then requested the court to charge as follows, viz.: 1. That if the note in suit was made and discounted to procure funds to pay the first note, and if the plaintiffs were informed of that object, and still owned the first note, and intentionally charged or deducted interest on the note in suit for thirty-five days, the last named note was usurious and void. 2. That if the note in suit was discounted by the plaintiffs’ issuing the draft on Albany at one half per cent premium for difference of exchange, and the object of the note and discount, to the knowledge of the plaintiffs, was to pay the former note discounted by, and which still belonged to the plaintiffs, the last note was void. The court declined to charge as requested in either of the last two propositions. Exceptions were duly taken by the defendants’ counsel to the various rulings of the court in his charge to the jury adverse to the views and requests of the defendants’ counsel, and in declining to charge as requested.
If the conclusion to which I have arrived in this case is sound, the charge of the justice before whom the action was tried, was more favorable to the defendants than they had a right to require. The first legal position of the defendants’ counsel, is that a loan to be repaid at a future day, at a place other than that where the loan is made and the parties reside and carry on business, the rate of exchange at the time of the loan,'between the place of the contract, and of the payment, being in favor of the latter, is usurious, unless the place of payment was fixed upon by the parties „ at the bona fide request or for the accommodation of the borrower.
[343]*343To render a contract usurious there must be an agreement by which the lender is to receive, directly or indirectly, in money, goods, or things in action, or in some other way, a greater sum, or greater valúe than at the rate of seven dollars upon one hundred dollars for one year. (1 R. S. 771, 2, §§ 1, 2. 2 Id. 56, 3d ed.) The defendant’s argument is, that as the notes in question were made payable at Troy, where money was worth one half per cent more than at Palmyra, the plaintiffs would, upon payment of the notes according to their terms, receive one half of one per cent upon the amount loaned, more than the law allows; and that the defendant, by the contract, undertook to do more than to repay to the plaintiffs the amount loaned with seven per cent interest, to wit, that he undertook to carry the money to Troy. This reasoning, while it is quite plausible, it seems to me is too speculative and uncertain to prevail in a court of justice. It is to be borne in mind that the contracts in this case not only contemplated a place of payment of the loan different from the one at which the loan was made, but looked to a future period for the time of payment, while the proposition of law contended for, supposes a difference in the rate of exchange between the two places, at the time of the loan.
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Welles, J.
At the close of the evidence, the court was requested to charge the jury, 1. That if the note of Sanford, which fell due 3d January, 1848, was, at the time it was discounted, worth more to the plaintiffs by means of its being made payable at Troy, than a note payable at Palmyra, where Sanford and the plaintiffs resided, and carried on business, on account of funds at Troy being worth more than funds at Palmyra, and if it was not made payable at Troy at the bona fide request, or for the accommodation of Sanford, it was usurious and void. 2. That if said note was, at the time it was discounted, worth more to the plaintiff, by reason of its being payable at Troy than if made payable at Palmyra, and the plaintiff made it a condition of the discount that they should have a note payable at Troy, the note was usurious and void. The court declined to charge in the terms proposed, but charged instead thereof as follows, viz.: “ While I do not entirely dissent from the position assumed in these two points, I cannot, nevertheless, concur in them to their full extent. Whether a note made payable at a distant place, where funds are more valuable than at that where it is discounted •is usurious or not, depends upon the circumstances attending the transaction. A purchaser of produce having funds in the hands of his factors, at an eastern market, may draw a draft upon those funds, or make a note payable at the place where the funds are, relying upon the funds to meet it, and neither will be [341]*341usurious. In such a case it can make no difference whether the borrower or the lender selects the place of payment, or whether it is or is not made a condition of the loan that the note shall be made payable at the place where the funds are. It is a legitimate business transaction, and it is of no consequence which party is most benefited by it. The points under consideration, in assuming that if the place of payment of the note in question was not chosen by the maker for his own accommodation, or if it was made a condition of its discount that it should be made payable in Troy, funds there being more valuable than at Palmyra, then it would be usurious, irrespective of all other considerations, go farther than I think the law will warrant. If the place of payment grows naturally out of the course of business of the maker of the note, and is selected with a view to funds of his which are there, then it is no usury. So if the maker of the note have no funds at the point where the note is made payable, at the time it is discounted, but have produce there or on the way, which is to be sold, and the note is made relying upon the avails of such sale to meet it, the transaction is not usurious. If, on the other hand, the maker of the note has no funds at the place where the note is made payable, nor any reasonable expectation. that he will have funds there, growing out of his legitimate business, to meet the note, but it is expected, by both parties, that the borrower will have to place the funds there for the especial purpose of payment, the note is usurious, whichever party may have proposed the arrangement. When a note is made payable at a distance, to meet funds there or expected to be there, the benefit to the lender, if any, is a mere incident to the course of business. All that the maker contracts for, in such a case, is to apply the funds to the payment of the note. But when he promises to pay at a point where he neither has, nor expects to have funds, he agrees virtually to do more, to wit, to transport the funds to the place of payment, for the benefit of the lender. This addition to the mere agreement to pay makes the note usurious and void.”
The court, at the request of the defendants, counsel, charged the jury that if the first note of Sanford, which fell due January [342]*3423d, 1848, was usurious, and if the note in suit was made and discounted to pay the former note, the plaintiffs being acquainted with the object, and still remaining the owners of the first note, the note in suit was usurious and void.
The defendants’ counsel then made a like request in regard to the note in suit, precisely as he had previously in the two first points requested in respect to the first note, which request the court refused, and charged instead thereof, as he had done upon the previous request.
The counsel for the defendants then requested the court to charge as follows, viz.: 1. That if the note in suit was made and discounted to procure funds to pay the first note, and if the plaintiffs were informed of that object, and still owned the first note, and intentionally charged or deducted interest on the note in suit for thirty-five days, the last named note was usurious and void. 2. That if the note in suit was discounted by the plaintiffs’ issuing the draft on Albany at one half per cent premium for difference of exchange, and the object of the note and discount, to the knowledge of the plaintiffs, was to pay the former note discounted by, and which still belonged to the plaintiffs, the last note was void. The court declined to charge as requested in either of the last two propositions. Exceptions were duly taken by the defendants’ counsel to the various rulings of the court in his charge to the jury adverse to the views and requests of the defendants’ counsel, and in declining to charge as requested.
If the conclusion to which I have arrived in this case is sound, the charge of the justice before whom the action was tried, was more favorable to the defendants than they had a right to require. The first legal position of the defendants’ counsel, is that a loan to be repaid at a future day, at a place other than that where the loan is made and the parties reside and carry on business, the rate of exchange at the time of the loan,'between the place of the contract, and of the payment, being in favor of the latter, is usurious, unless the place of payment was fixed upon by the parties „ at the bona fide request or for the accommodation of the borrower.
[343]*343To render a contract usurious there must be an agreement by which the lender is to receive, directly or indirectly, in money, goods, or things in action, or in some other way, a greater sum, or greater valúe than at the rate of seven dollars upon one hundred dollars for one year. (1 R. S. 771, 2, §§ 1, 2. 2 Id. 56, 3d ed.) The defendant’s argument is, that as the notes in question were made payable at Troy, where money was worth one half per cent more than at Palmyra, the plaintiffs would, upon payment of the notes according to their terms, receive one half of one per cent upon the amount loaned, more than the law allows; and that the defendant, by the contract, undertook to do more than to repay to the plaintiffs the amount loaned with seven per cent interest, to wit, that he undertook to carry the money to Troy. This reasoning, while it is quite plausible, it seems to me is too speculative and uncertain to prevail in a court of justice. It is to be borne in mind that the contracts in this case not only contemplated a place of payment of the loan different from the one at which the loan was made, but looked to a future period for the time of payment, while the proposition of law contended for, supposes a difference in the rate of exchange between the two places, at the time of the loan. How could it be certainly known that at the maturity of the note, there would be any premium on exchange between Palmyra and Troy; or if any, whether it would not be in favor of Palmyra? We shall be obliged to speculate upon contingencies and probabilities, in order to apply the reasoning of the defendants’ counsel in regard to benefit to the lender, to the premises. The rule, to be a good one, must be applicable to cases where the places of the loan and the payment, are other than Palmyra and Troy, and where the time of payment is more than thirty days. It may be highly probable that the rate of exchange would undergo no essential alteration between Palmyra and Troy during the periods which the notes in question had to run. But suppose the place of the residence of the parties to the loan, and the transaction itself, to have been Rochester, the place of payment Buffalo, and the time of payment five years, with the rate of exchange at the time of the loan one-eighth of one per cent in favor of Buffalo. Would not [344]*344the rule contended for be equally applicable 1 In both cases, the one just supposed and that at bar, the state of the exchange, when the money becomes payable, determines the question whether the lender, in the light of the counsel’s argument, receives more than seven per cent. What that rate of exchange will be, it is equally impossible in both cases to foresee with legal certainty, or to say that it may not be for the benefit of the borrower, or loss to the lender, or both.
The argument of loss, expense, or inconvenience to the borrower has no application to the question. Usury is a creature of the'statute. It is malum prohibitum merely; and we are to see what .the statute prohibits. Its language is exceedingly comprehensive, but the prohibitions relate to what the lender is to receive for the loan or forbearance. The words are, “ shall, directly or indirectly, take or receive in money, goods or things in action, or in any other way,” &c. It is .of no consequence, to the point under consideration, what it may cost the borrower to pay the money. A creditor has in all cases the right to demand specie of his debtor. There have been times, when, to insist upon that right, would have been ruinous to many debtors. The question always is whether the contract secures to the lender more than seven per cent.
It appears to me that there is no better or safer test of this question than to inquire whether by the contract, were it not for the usury law, any thing more than seven per cent could be recovered. Judging the present case by this test, most clearly there was no usury, in view of the proposition under consideration. The recovery upon the note would be the same whether payable at Palmyra or Troy. A tender of the amount of the note to the plaintiffs personally, the next day after it matured, would be good, beyond a doubt. No one will pretend that they would have the right to demand any difference in exchange between Palmyra and Troy. In every aspect in which I have been able to place the subject, it seems clear that the legal effect, so far as respects the amount which the lender is entitled to receive, is the same as if the notes were payable generally, or at Palmyra or any other place.
[345]*345The next position of the defendants’ counsel is that a lender has no right to exact as a condition of the loan that the money shall be paid at a different place from that where the loan is effected, provided the money when so paid will be worth more to him at the former than the latter place. The only real difference between this and the other position is, the condition exacted in relation to the place of payment.
If the view I have taken of-the first position is correct, it fully disposes of this ; as, most clearly, if it was not usury to take the notes payable at Troy without reference to the request or accommodation of Sanford the borrower, it was not unlawful for the plaintiffs to require them to be made payable there. It was urged, upon the argument, that the case at bar was within the principle of The Seneca County Bank v. Schermerhorn, (1 Denio, 133.) That was a flat case of usury, and bears little qr no resemblance to the present. Schermerhom paid $22,50 to get two notes then in bank, amounting to $3000, renewed for three months, besides paying the regular discount on them for that time. It was a case within the letter and spirit of the statute. The bank took whatever the drafts on New-York and Albany were worth above par, more than seven per cent upon the forbearance of the debt. That was proved to have been $22,50. The drafts were payable at sight, and were proved to be good, and would at the time of the transaction, command a premium of just that amount. It is difficult to conceive a more palpable case. The case of The Bank of the U. S. v. Davis, (2 Hill, 451,) which has been cited, was also a clear case of usury. The paper discounted in that case was drafts on New-York, on time. The transaction took place at the plaintiffs’ branch at Erie, Pennsylvania. In addition to the legal discount, one half of one per cent was deducted, as a charge for collection in the city of New-York, while at the same time the branch at Erie was selling drafts on New-York at one half per cent premium.
I deem it unnecessary to dwell longer on the points and positions of the defendants’ counsel, involving the question of usury. No case which I deem parallel with the present has been cited where the transaction has been held usurious. And [346]*346the fact that none has been found, is strong evidence to my mind that there was no usury in this case; especially when it is a fact which every body knows, that transactions of precisely the same character have been of daily occurrence for a great number of years, both in England and this country. The positions which I have discussed are the strongest ones for the defendant, and if my views in relation to them are sound, they dispose of the minor and subordinate ones on that subject.
When this case was before us on a former occasion, (8 Barb. 225,) it was contended that the note in suit was void on the ground that the proceeds were paid to Sanford in a draft to be used in taking up the first one, upon which draft a premium was charged, as being in violation of the statute on that subject. (Laws of 1835, ch. 307, § 1. 1 R. S. 727, § 32, 3d ed.) Wo then held that the statute only applied to moneyed corporations ; and as it appeared that these plaintiffs were individual bankers and not an association, under the general banking law, and consequently not a corporation, were not within the act. It was not shown on the last trial that the plaintiffs were an association, under the law. They were engaged in banking, and kept a banking office, discounted notes, and issued bills and drafts, and their bills circulated as money. All this may be done by private bankers as well as associations. On this question the defendants' held the affirmative, and when they attempt to bring the plaintiffs within a statute which is penal in its nature, they should be held to make clear proof. In my opinion there was not enough shown on that subject to justify the court in submitting the question to the jury, and consequently that he was right in declining to do so.
On the argument of this case we were referred to the case of Gillet v. Moody, (3 Comst. 479,) as favoring the idea that individual bankers, under the general banking law, were equally with moneyed corporations within the prohibitions of the statute referred to. I have examined that case and do not find that it conflicts at all with our former decision in this case.
The bank, in the case in Comstock, was an association under [347]*347the law, which has been over and'over held to be a moneyed corporation.
In my judgment a new trial should be refused.
Taylor, J. concurred.